Yet another failed injunction regarding bailiff enforcement.

[Bailiff Advice]

If there is a dispute regarding goods that may have been seized by bailiffs and the debtor considers that those goods should not have been taken as they were considered (for one reason or another) to be exempt, then the regulations provide that there is a proper and FREE procedure that should be made under section 85 of the Civil Procedure Rules.

 

Unfortunately, it would seem that debtors are wrongly making application to the County Court for injunctions and so far, we have yet to see one succesful case. Instead, there are many cases now being reported where debtors are having substantial cost orders made against them (in one case last week a debtor was ordered to pay the local authorities costs of £3,200. Details can be read here:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?445251-Goods-on-HP-a-Judge-says-they-can-be-sold(8-Viewing)-nbsp

 

Today, I have received details of yet another failed injunction but most importantly, the Judgment makes very clear (yet again) that the wrong procedure was used and the claim has instead been transferred to a District Judge at another court pursuant to CPR 85.7(5) for further directions.

 

Details will follow in a moment....

 

PS: It should be noted that in this particular case, it would also seem that the wrong party had issued the proceedings.

[unclebulgaria67]

Have you raised this issue with revelant bodies ? If advice is being offered to make applications for injuctions, which lead to the problems you have explained, then surely this must be flagged with the appropriate people. Are National Debtline and CAB aware that this is happening, so that they can put out a warning about this and reinforce what the correct procedure is ?

[Bailiff Advice]

The Claimant ( an individual) issued an injunction and named two defendants; one being the enforcement company.

 

Initial hearing on 13th March 2015 granting of the injunction. The case was then listed for a full hearing at Edmonton County Court before District Judge Morley.

 

Following the hearing, District Judge Morley made the following ruling in his Judgment:

 

 

On the court taking the view that the issue of the claim form has effectively circumvented the procedure described in CPR 85.5 but that the issues in dispute have now been clarified and that in the circumstances the matter proceed as if the claim form amounts to an application under CPR 85.5 and the Court on the balance of convenience being not prepared to continue the Injunction granted on the 13th March 2015

 

IT IS ORDERED THAT:

 

1. That xxx (limited company as owner of the goods) be substituted as the Claimant in place of Mr xxx

 

2. The claim against 2nd defendant be struck out

 

3. The Injunction ordered on the 13th March be discharged.

 

4. The claim be transferred to a District Judge in xxx District Registry pursuant to CPR 85.7(5) for further directions.

 

5. Costs be reserved to the trial judge.

[Coughdrop]

I posted this around a fortnight ago:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?444443-Bailiff-enforcement......if-a-vehicle-is-considered-to-be-exempt-should-the-debtor-issue-an-injunction&p=4730496&viewfull=1#post4730496

 

There's little really to add, save for the fact the first stage of the injunction in the case detailed above, predates the judgment about which I was commenting in the link. If lessons have been learned, then we would probably expect to see a few more of these in the next few weeks, but see them peter out as the free procedure is used whenever this remedy is available in the future.

[Bailiff Advice]

Just seeing whether I can redact personal information from the judgment. If I am able to, I will post up a copy (of the judgment) shortly.

 

We seem to have come full circle. A couple of years ago it was failed Form 4 Complaints with significant cost orders and we now we have injunctions that are failing. As has always been the case, I will provide evidence in support.

[Peterbard]

Just seeing whether I can redact personal information from the judgment. If I am able to, I will post up a copy (of the judgment) shortly.

 

We seem to have come full circle. A couple of years ago it was failed Form 4 Complaints with significant cost orders and we now we have injunctions that are failing. As has always been the case, I will provide evidence in support.

 

Indeed, there seems to be a common element in both these scenarios, escapes me for the moment.

[Bailiff Advice]

On the subject of such claims, the following is from John Kruse:

 

'In the past, an allegation of third party ownership would have been dealt with by many bailiff companies without any referral to the creditor.

The new procedure demands that the creditor be informed and make the decision.

 

The role of the bailiff as agent is asserted starkly.

The enforcement agent merely transmits a claim in valid form; it does not assess it

as ultimately, the credit will be taken to the County Court or High Court by the aggrieved party if the claim is rejected'.

[Peterbard]

On the subject of such claims, the following is from John Kruse:

 

'In the past, an allegation of third party ownership would have been dealt with by many bailiff companies without any referral to the creditor.

The new procedure demands that the creditor be informed and make the decision.

 

The role of the bailiff as agent is asserted starkly.

The enforcement agent merely transmits a claim in valid form; it does not assess it

as ultimately, the credit will be taken to the County Court or High Court by the aggrieved party if the claim is rejected'.

 

Which is fine but of course it is the EA who makes the decision as to whether to take goods under control or not in the first instance.

 

As I said earlier it seems that HP goods can be taken into control because, at least for now there is the interest in goods issue.(thanks for that)

 

However as I also said earlier they should not be taken under control because it would not be, " taking control of goods and selling them to recover that sum in accordance with this Schedule and regulations under it", because irrespective of the technicalities they belong to someone else and so do any funds raised on their sale(even if any sale could legally be made).

[brassnecked]

Can of worms, but if the goods are third party it is for the owner to make the claim via the informal process laid down initially, there is also the issue of types of finance especially on motor vehicles.

 

A car bought with a bank loan is available to the bailiff as the purchaser/debtor has full title,

HP is different and indeed the car may be available dependent on how far along in the contract, the value of the car, and whether selling it would clear the HP, fees and a portion of the debt, it could be alleged that debtor breached the contract with the Finance Companyby allowing the bailiff to Take Control of the car, so the Finance Co would have an absolute defence if they allowed a sale.

 

Under Contract Hire or lease as in personal contracts, Motability etc, the vehicle is exempt as it never becomes the property of the debtor, it goes back at the end of the contract, similar for courier's vans, they usually contract hire as there are tax benefits to hiring rather than purchasing on HP.

[Peterbard]

Can of worms, but if the goods are third party it is for the owner to make the claim via the informal process laid down initially, there is also the issue of types of finance especially on motor vehicles.

 

A car bought with a bank loan is available to the bailiff as the purchaser/debtor has full title,

HP is different and indeed the car may be available dependent on how far along in the contract, the value of the car, and whether selling it would clear the HP, fees and a portion of the debt, it could be alleged that debtor breached the contract with the Finance Companyby allowing the bailiff to Take Control of the car, so the Finance Co would have an absolute defence if they allowed a sale.

 

Under Contract Hire or lease as in personal contracts, Motability etc, the vehicle is exempt as it never becomes the property of the debtor, it goes back at the end of the contract, similar for courier's vans, they usually contract hire as there are tax benefits to hiring rather than purchasing on HP.

 

Absolutely correct BN

 

As you say all HP agreements will have clause which requires the lender retain possession of the vehicle, if they do not they can be in default, and the creditor could terminate. If the contract is fairly new and less than one third settled they can do this without the requirement for a court order.

This then could result in the creditor settling the remaining finance and selling the car, if there is enough equity to make it worth their while.

[caledfwlch]

Maybe a couple of us should get Certificated, and then "accidentally" remove a few MP's cars for other peoples debts!

[lookinforinfo]

I cannot believe that this interpretation of "goods" can be taken seriously.

 

In Schedule 12 10 it states An enforcement agent may take control of goods only if they are goods of the debtor.

 

And even the HCEOA.org.uk confirm that

Are there any goods which the High Court Enforcement Officer cannot take to be sold?

 

Yes there are. You and your family cannot be deprived of all your goods and particularly those you need to be able to live and work on a daily basis.

 

Tribunals Courts Enforcement regulation lays down a specific list of goods which are exempt, which briefly includes in addition to the above:

 

Vehicles and other goods subject to hire purchase or rental agreements;

[Peterbard]

The problem is that there is now a court ruling that says that the debtor has an interest in HP goods(personally I think this is wrong), there are argument which can be used in subsequent cases to challenge this assertion and this is lower court case so it sets no precedent, however it can be quoted as being persuasive, more importantly EA can site this as giving them the belief that such goods are open to seizure.

 

The sanctions for breach of schedule 12 procedures are given here

 

(5)In the proceedings the court may—

 

(a)order goods to be returned to the debtor;

 

(b)order the enforcement agent or a related party to pay damages in respect of loss suffered by the debtor as a result of the breach or of anything done under the defective instrument.

 

(6)A related party is either of the following (if different from the enforcement agent)—

 

(a)the person on whom the enforcement power is conferred,

 

(b)the creditor.

 

(7)Sub-paragraph (5) is without prejudice to any other powers of the court.

 

(8)Sub-paragraph (5)(b) does not apply where the enforcement agent acted in the reasonable belief—

 

(a)that he was not breaching a provision of this Schedule, or

 

(b)(as the case may be) that the instrument was not defective.

 

Most would consider that such a ruling would excuse the EA for holding a "reasonable belief" that HP goods are open to seizure.

[brassnecked]

As that interest is beneficial to the debtor conditional on making continued payments on the agreement without default, and retaining control of the goods ultimately that reliance by EA is as firm as a sandcastle when the tide comes in. The debtor has breached their agreement, and the HP Company put in the third party claim. If the EA/Creditor ignores it it is at their peril, as at that point in extremis as lawful owner the HP Co could apply for injunction not that they would, merely that as owner that measure is available to them to prevent the sale of THEIR goods if they were opposed to the siezure fearing a shortfall at sale.

That is my opinion, but others will know much more

 

That judgment well one of them seems to be a result at a judges pique at the wrong party making the wrong application when there was already adequate remedy within the Regulations. The debtor is not the owner, so has no legal standing to apply for injunction.

 

There will be a problem when an EA and a creditor, reliant on these judgments, does take and sell, ignores the third party claim, sends the vehicle to auction despite the refusal of permission by Finance Co and the vehicle sells for less than anticipated leaving a shortfall of a grand or so of what the vehicle is worth to the Finance Co, let alone cover the fees and a portion of the debt

[Bailiff Advice]

 

 

The sanctions for breach of schedule 12 procedures are given here

 

(5)In the proceedings the court may—

 

(a)order goods to be returned to the debtor;

 

(b)order the enforcement agent or a related party to pay damages in respect of loss suffered by the debtor as a result of the breach or of anything done under the defective instrument.

 

(6)A related party is either of the following (if different from the enforcement agent)—

 

(a)the person on whom the enforcement power is conferred,

 

(b)the creditor.

 

(7)Sub-paragraph (5) is without prejudice to any other powers of the court.

 

(8)Sub-paragraph (5)(b) does not apply where the enforcement agent acted in the reasonable belief—

 

(a)that he was not breaching a provision of this Schedule, or

 

(b)(as the case may be) that the instrument was not defective.

 

 

In this particular case, we do not know the reason for the injunction but given the identity of the 2nd defendant (the vehicle removal company) it is safe to say that a vehicle has been removed. I do not believe that the vehicle was subject to hire purchase.

 

Your above post however is of vital importance.

 

As you have quite correctly highlighted,that if a debtor seeks legal proceedings for damages or loss suffered as a result of the enforcement agent breaching the Schedule 12 procedure then any award can be rejected if the enforcement agent reasonably believed that he was not breaching the Schedule 12 procedure.

 

This clause is very well known and is the main reason why any silly suggestions of claims being awarded under the Torts Act are fairy stories (which is why you will never seen any evidence of successful claims).

[Peterbard]

It is danger when discussing these more complex issues that others elsewhere take hold of the ideas, misinterpret them and concoct yet another misconceived money-spinning "template letter", I see the process has begun already.

 

In reality the correct procedure for dealing with seizures of vehicles will depend on the individual circumstances, the parameters of which are almost infinitely variable, there is no one size fits all solution here, it is arguable that there never was in any scenario.

[brassnecked]

In this particular case, we do not know the reason for the injunction but given the identity of the 2nd defendant (the vehicle removal company) it is safe to say that a vehicle has been removed. I do not believe that the vehicle was subject to hire purchase.

 

Your above post however is of vital importance.

 

As you have quite correctly highlighted,that if a debtor seeks legal proceedings for damages or loss suffered as a result of the enforcement agent breaching the Schedule 12 procedure then any award can be rejected if the enforcement agent reasonably believed that he was not breaching the Schedule 12 procedure.

 

This clause is very well known and is the main reason why any silly suggestions of claims being awarded under the Torts Act are fairy stories (which is why you will never seen any evidence of successful claims).

There is virtually no chance of success a Reasonable Belief by the EA is sufficient and cast iron as a defence, especially if at the time there was nothing to indicate any exemption from siezure, say a Blue badge displayed.

[Peterbard]

In this particular case, we do not know the reason for the injunction but given the identity of the 2nd defendant (the vehicle removal company) it is safe to say that a vehicle has been removed. I do not believe that the vehicle was subject to hire purchase.

 

Your above post however is of vital importance.

 

As you have quite correctly highlighted,that if a debtor seeks legal proceedings for damages or loss suffered as a result of the enforcement agent breaching the Schedule 12 procedure then any award can be rejected if the enforcement agent reasonably believed that he was not breaching the Schedule 12 procedure.

 

This clause is very well known and is the main reason why any silly suggestions of claims being awarded under the Torts Act are fairy stories (which is why you will never seen any evidence of successful claims).

 

No BA and we never will because it is complete nonsense, anyone with the slightest knowledge of actions in tort would find the idea laughable.

 

The regulation and CPR is clear that any third party claim is between the owner of the goods and the creditor, ringing the bailiff and quoting half understood regulation and hurling abuse and threats is a complete waste of breath, although it may prove to impress the uninformed.

[Peterbard]

Just some points, unfortunately I do not think that anyone who understands the CURRENT position would say that seizing a vehicle on HP is illegal, would that it were.

The finding that the debtor has a beneficial interest in the goods however questionable, renders the act completely "legal" so an template letters aimed at EA using this misconception re going to fail.

 

Hp goods are not securities, they are owned by the lender and hired to the debtor, they "secure" nothing, it is fine being able to spell but even better not to talk bollocks.

 

Since yesterday the feelings regarding injunctions seem to have changed yet again, in certain quarters, hardly surprising as they seem unable to maintain an opinion for more than five minutes.

 

Injunctions are a bad idea and do not work, as we have seen in the case here courts do not award injunctions if an alternative remedy is available.

 

This is of course not to say that the first stage of the process may not suspend an action whilst the matter is decided, they have to do something for your £350. But when the hearing occurs the action will fail as it did here and in other cases, and then of course there are costs implications which generally run into multiples of the original fine.

[Peterbard]

Seems like most now agree wth the last post of mine on here, odd because of the amount of vitriol that was sent my way when I posted it, another related story here, although not exactly bailiff related it does cover some of the arguments touched on, on this thread regarding McKenzie friends.

 

http://www.lawgazette.co.uk/news/mckenzie-friend-jailed-for-5000-fraud-scheme/5050653.article?utm_source=dispatch&utm_medium=email&utm_campaign=GAZ240815

 

"A Bedfordshire man who posed as a Mckenzie friend to receive more than £5,000 from clients has been jailed for three years"

 

"Sentencing Williamson, His Honour Judge Stuart Bridge said: ’Your actions were callous and premeditated. You attracted people who were unable to obtain legal support due to cuts in legal aid. You deliberately sought these people out. Once you had been paid you broke their trust.’"

[Bailiff Advice]

 

http://www.lawgazette.co.uk/news/mckenzie-friend-jailed-for-5000-fraud-scheme/5050653.article?utm_source=dispatch&utm_medium=email&utm_campaign=GAZ240815

 

"A Bedfordshire man who posed as a Mckenzie friend to receive more than £5,000 from clients has been jailed for three years"

 

"Sentencing Williamson, His Honour Judge Stuart Bridge said: ’Your actions were callous and premeditated. You attracted people who were unable to obtain legal support due to cuts in legal aid. You deliberately sought these people out. Once you had been paid you broke their trust.’"

 

This thread concerns another failed injunction recommended by a one particular Mc Kenzie. Unfortunately time constraints (dealing with the One Year Review) has meant that I have not had time to post details of yet another injunction that has since failed that was also suggested by the same person. I will try to get the details of that case posted as soon as possible.

 

Second point (slightly off topic) is that it is hoped that HP goods etc will be addressed under the One Year Review. John Kruse is absolutely correct in that such goods should not be taken, but despite his excellent advice, some Judge's do not agree and this is the reason why it is foolhardy for a debtor to instigate legal proceedings (unless of course he has very deep pockets).

 

As I have said many times, if a debtor (or third party) considers that a bailiff/enforcement agent has seized goods that they should not have done, there is a very simple, effective and speedy remedy under CPR 85 that should be followed. A copy of the notice outlining the reason for the dispute must be sent to the enforcement company within a maximum period of seven days. The EA then have a strict time period in which to inform the creditor (normally the local authority) that a dispute had been raised. The creditor then has the duty of making a decision as to whether to admit or dispute the 'claim'. If the creditor agrees that the seizure was wrong, the goods are released. This procedure works extremely well and is FREE.